UGRASEN MUKHI Vs. STATE

JUDGEMENT

(1.) THERE is little controversy to this case that on the night in between 12th/13th April, 1964 at about 1 a.m. the Appellant Ugrasen Mukhi who is aged about 50 years, struck two blows with a Khatabahi (solid wooden bar) on the head or his wife, Sambari Dei aged about 45 years, and as a result thereof she died then and there instantaneously. These facts have not been challenged before us by Mrs. Padhi, appearing for the Appellant. Therefore there is no doubt that it was a case of man -slaughter. The doctor (p.w.7) who held the post -mortem examination on the dead body of the deceased on 13 -4 -1964 at about 1l.30 a.m. found the following two injuries on her person (1) a lacerated wound 1/2" x 1/4" bone deep on the right temporal region with an underlying contusion 2" x 2", and (2) an incised looking '.lacerated wound 2" x 1/4" x bone deep on the right mandible region. In the opinion of the doctor both these injuries were ante -mortem and could be caused by a hard and blunt weapon like the Khatibahi exhibited in the case as M.O.I. Further the doctor has also deposed that death was due to' shock and haemorrhage resulting from external injury No. 1 with its corresponding internal injury. Therefore, his evidence gives full support to the statement of the prosecution witnesses as to the mode and manner of the assault that was inflicted on the deceased.

(2.) THE 12th of April, 1964 was Pana Sankranti day -a day of festivities -and both the husband and wife had taken liquor.. There was a "Chou Nacha" as well organised in the village on that day. The Appellant has five sons. Two of them had been on that night to the Chou dance and the remaining three along with their parents were sleeping in their house. At about 1 a.m. the Appellant asked his wife for some water which she did not give and told him that the house was closed. At his the Appellant assaulted her with the Khatabari as just stated. In the course of that assault one of her minor sons Manglu (p.w.3) beard his mother shrieking "Oh mother". Hearing that he, came running to the open shed where his mother was sleeping and found blood coming out of her mouth and nostrils. The Appellant was then found standing at a distance of about 15 cubits from the charpoy on which the deceased was sleeping and the claim of this p.w.3 is that on his arrival there, the Appellant admitted to him to have killed his mother. At this he was enraged and gave him a push. He then ran to the place of "Chou Nach" and reported the matter to his brothers. The two brothers immediately rushed to the place. By that time their mother was dead. One of these two sons was examined at the trial as p.w.2. His evidence is that before him, too, the Appellant admitted his guilt. At about 2 a.m., p.w.2 went to the P.S. Gorumohisani where the F.I.R. was, on his statement, recorded by the Officer -in -Charge (p.w.6).

(3.) THE serious controversy, however, that has been raised before us on the facts of this case is that even conceding that they are all true, they do not establish a case of Section 302, Indian Penal Code but at best one of Part II of Section 304, Indian Penal Code and therefore it has been submitted that the Sessions Court has erred in law in convicting the Appellant under Section 302, Indian Penal Code and sentencing him to life imprisonment thereunder. The circumstances relied on by Mrs. Padhi in support of this part of her submissions are